D Kistaiah v. The State of Telangana

the affidavit filed in support of the petition, the High Court rnay be pleased to suspend the operation of the impugned award dt.9-2-2015 passed in lD No.2012012 on the file of the 2nd respondent communicated Vide GO Rt No.1'17 dt.17-3-2015. Counsel for the Pelitioner: SRI CH. JAGANNATHA RAO Counsel for the Resipondent Nos.1 & 2: GP FOR LABOUR Counsel forthe Respondents: SRI N. CHANDRA SEKHAR, S.C FOR TGSRTC The Court made the following: ORDER I * f, * i , * * ,| t* ,,]' * THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO o ORDER: \ITRIT PETITION No.34OO4 OF 2015 This Writ Petition is filed for the follovving relief: "... to issue, a Writ Order or Orders more particularly one in tlrc nature Writ of certiorari calling for records pertaining to impugned award dt.9-2-2o15 in ID No.2O/2012 on the Jile of the 2"a respondent communicated Vide G.O. Rt. No.l17 dt.17.3.2o15 in so far as not granting continuitg seruice of the petitioner and quash the same and consequently direct the respondents to award the petitioner's continuitg of serube with all ansequential benefits, bg holding the action of the respondents in not awarding corutinuity of seruice of the petitioner and further treating him as afresh diuer as illegal, arbitrary, disciminatory and subuersiue of Arttcles 14,16 of the Constitution of India and pass..."

2. Heard Sri CH. Jagannatha Rao, learned counsel for the petitioner, and Sri N. Chandra Sekhar, learned Standing Counsel for TGSRTC, appearing lor the respondents. Perused the material on record.

3. Learned counsel for the petitioner submits as follows: I 2 That the petitioner rvas initially appointed as a daill' '"vage driver in Al']SRTC in the year 1991, and his services u,ere regularized rvith effect from 01.08.1995. Ever since his date of appointment, he is discharging his duties to the utmost satisfaction of his superiors, maintaining an unblem'ished record and achieving the targets fixed by the Corporation. That being so, orr 18.O6.2007, the petitioner u'as instructed to operate bus No.AP- 1 IZ-1465 on the route Karimnagar - Nizamabad at. 05:30 Day Out Service. Uniortur.ratei-y, due to break failure, he could not stop the bus and ran on to the Nizamabad Platform No.2 1 . He took all the 1:rec autions to avert the acciclent and there was no fault on his part. But the

3.,r respondent had issued Proceedings dateri 28.06.20O7 placing the petitioner under suspension and issuec a charge memo as follor,l, s:

1. For )wuing to take utmost care to auert anA kind of acciclent uhile enteing on Platfonn No.2 1 of Nizannabad point of Kaimnagar Bus Stctlion on 18.O6.20O7 uhile perfonning duty of 5.30 hours Kairtnagar to Ni.z,amabad, u.thile comuti from Kaintnagar - II Depot to platforn No.2 1.

2. For h,tuing failed to apply brakes of the bus to sLop the bus at 'Nizagqfoad Plat Fonn No.2 I "f Kanimnagar bus .' on 18.6.20O7 et about ( I I 3

6.00 hours. There by the bus diuen by gou at high speed and in a rash and negligent manner, ploughed into Kanmnagar Bus Statiott hitting to platfonn utall, pillars up to ordinary enquiry room thereby bus damaged, resulted to instantaneous death of u)oman, intending to board your bus and other four persons suslained injuies.

4. The respondents did not supply tl-re relevant copies of documents like accident report, rough sketch and eyewitness statements etc., along with the chargesheet- The petitioner submitted his explanation on O4.A7.2OO7 denying the two charges. Thereafter, the respondents appointed an Enquiry Officer to conduct enquire into the charges. The Enquiry Officer did not conduct proper enquiry and not given full pledged opportunity during the course of enquiry ald he was not permitted to cross-examine the '"vitnesses. During the course of enquiry, the petitioner had specificalll, stated that on the date of the accident he had applied the brakes but due to healy rain throughout the night, radial {rres, cement wet road, water stagnation before platform, brakes u'ere rolled and radia-l tyres slipped on applying the brakes but there was no wanton mistake on petitioner's side. 4 5. Apart from that the platform of Nizamitbad sector lr,as very low when compared to other platforms arrd :asy to claim the tyres due to slipping of radial tvres and the petitioner lifted the hand bi-ake for effective application, meanu'hile the bus climbed the platform and stopped. The speed of the bus nas very slos,, a s the petitioner left from depot ar-rd travellecl 5O Yards distanre and taken the left tunnel and afte: left tunnel only travellec 50 Yards distance and total 1OO Yar,l travel. [n this short distance, there is one left corner turn; therefore the question ol speed of the bus does not arise. That the bus nas gone up to e:rquiry room and the distance from platform to enquiry room is only 10-0 to l2-O feet, which is very near. Thus, any pru,lent driver will not cause such a drastic accident wantonly and will not drive the bus so rashly ald rregligently, when the bus .s to be parked on the platform ancl olher buses also parked o1r the platform. Therefore, it is absotutely not correct to state that the petitioner had driven the bus r,r'ith rash and negligent rnanner and with high speed arrd ca-used the accident without taking precautions to avert the accidt:nt.

6. However, the Enquiry Officer without conside'ring the petitioner's explanations during the course ol domestic enquiry, and relied in toto on the preliminary er-rquirl' report 4- I 5 and held that both the charges which are one and the same are held proved. Apart from that, the Enquiry Officer has not given opportunity to cross examine the management witnesses during the course of enquiry and the enquiry officer failed to consider that the bus was not inspected by the MVI on the spot. The Enquiry Officer had reiied upon the statement of Asst. Engineer (Mechanical), Karimnagar-Il Depot who is not a competent person as he is the in-charge of vehicles. He will give the vehicles to the drivers from his Depot and the accidental bus belongs to his Depot and under his control, therefore, he would not enlighten the proper defects of the vehicle. If he discloses aly vehicle defect, he would be plunged into disciplinar5r action by the Management. Therefore, relying on the statement of a management witness i.e. Asst. Engineer (Mechanical) who is interested witness, held that the charges were proved against the petitioner and the same is highly illegal and opposed to all principles of equity, justice and fair play.

7. The l"t respondent without considering the true facts, cogent evidence on record, satisfactory explanations submitted by the petitioner from time to time, removed the petitioner from service through Order, dated 1 l.O l.20Og illegally. Aggrieved by the petitioner preferred removal order, 6 an appeal to respondent No.4, which was mech:rni<:allrr rejccted on 12.O3.2018. Thereafter, the petitioner prel'erred a reYIe\,\t petition, rrhi:h q'as partly allowed by responclent No.5 - the Regional Manager vide proceedings date<l 04.09.2008 reinstated hirn as a fresh driver.

8. As per the re-instatement orders, dated 04.0').2008, the petitioner joined duty. The petitioner had rendered more than 15 years unblemished record of service, but thr: r,:spondents did not consider for continuity of service. Since the ftndings of the Enquiry Olficer are perverse ald biased, the petitioner filed I.D.No.20/2O12 before the 2.a respondent and the sarne was dismissed blr impugned Award, dated 09.O2.2O15, rvhich u,as communicated by G.O.Rt.No.117, dated 17.O3.2015. The Labour court i.e. the 2'd respondent did not appreciate various grounds taken by the petitioner. Subsequent to liling of I.D.No.2Ol2012, the petitioner had fited I.A. on 24'11 '2O14 by filing 9 documents including the judgment of the Criminal Court, as rvell as appreciation letters issued by the respondents. In the claim statement it is mentioned that the accident occurrr:d due to brake failure due to healy rain and storage of rvater in the bus stand a-rea. [email protected][!7

9. The petitioner also stated that on the verv same charge in the criminal case Vide C.C.No.27 1 of 2009, he was honourably acquitted by judgment, dated 21.12.2011 b1, the trial Court. When the charge is same in the departmental enquiry as rvell as in the criminal case, ald since the petitioncr is acquitted in the criminal case, he is entitled for reinstatement u,ith all benefits as per the law laid down by' the Hon'ble Apex court However without considering the same, the 2n(l respondent has dismissed the I.D.No.20 /2012.

10. Though the 2.d respondent in the impugned Award categorically stated that in CC No.271 oi 2OO9 the investigating officer was examined and there is no evidence with rcgard to allegation that the petitioner drove t1-re bus in a rash and negligent manner and on that ground, the petitioner was acquitted. However, the same was not considered while passing the orders. The 2"d respondent did not consider that the findings of the Enquiry Officer a,re perverse and biased as the Enquiry Officer did not conduct proper enquiry as stated supra. I 1 . Though the petitioner specially stated in the revieu. petition that either the disciplinary authority or the enquirv- officer did not consider that the bus was got inspected by the I \ \ MVI on the spot of the fatal accident. Apart frrlm that, not awarding the continuity of service by the Latrour Court, also amounts to disproportionate to the gravity of ch.arges as the petitioner fo:'egoing about (15) years of service. Tne petitioner is now ge ttiirg basic pay of Rs.B,29O/- instead of Rs. 15,000/- and odd and the total salary of Rs. 16,675/- instead ol Rs.32,OO0,/ per month by not counting my previor-rs (12) -','ears of service. Thus, the petitioner is am suffering rvithL severc loss and harclshil:. Thus, viewed from any angle, the irrLpugned CiO Rt. No.i L7 d:. 17 3-20L5 deserves to be set aside. Hence. the present Writ l)etition.

12. The leirrned standing counsel appearin5l for the respondents s;ubmits that on 18.06.2OO7, while thr: petitioner rvas driving the bus No.AP-112-1465 (Express) at 5.1]5 hours to be operated 1'-om Karimnagar - Nizarnabad, hzrd tc arrivc at Platlorm No.2l of Karimnagar bus station, at first hours for bo:rding the passengers, but he failed to appilz brakes and drove the llr s tou.ards platform border wall and hit the passengers, u,lrich resulted instantaneous death of one womar-r, and injuries tc four others. The Traffic Police, KzLrimnagar, registered Crime No.69 l2OO7, dated 18.06.2OO7, under Sections 304 A arrd 337 IPC. a I 9

13. A preliminary enquiry conducted by the Assistant Manager (T), Karimnagar-Il Depot, and after deliberations made by the Accident Joint Enquiry Committee, clcarlv established that the petitioner was responsible for the fatal accident as he had not at all applied brakes to stop the bus at Nizamabad Platform No.21 in Karimnagar bus station. Consequcntly, he n as placed under suspension duly framing the charges vide chargesheet, dated 28.06.2O07.

14. Since the charges were held proved in the departmental enquiry ald as the petitioner's services were detrimental to the Corporation, he was removed from service by an order dated 1 1.O 1.2008. Aggrieved by the orders of the Deport Manager, the petitioner preferred an appeal before the Dy. Chief Traffic Manager, Karimnagar, on O4.O2.2O08 and the same was rejected on l2.O3.2OOa. Aggrieved by the orders of the appellate authority, the petitioner preferred a revien, petition before the Regional Malager, Karimnagar, on 26.04.2008 and the sarne was considered by the Regional Manager, Karimnagar, holding that charges were held proved and in view of maintaining satisfactory record, took a lenient view, allowed the review petition by order, dated 04.O9.20O8 and reinstated him into senice as afresh driver by order dated 04.09.2008 on 10 humanitari:Ln grounds. I5. The r:spondents submit that the Labour Court in I.D.No.20l/2(),l2. after examining the evidence including Ex.S/1 and Exs. \'1 I ro M32, held that the petitioner's negligence was clearly estal,lished and upheld the action o[ the Corporation, holding that his reinstatement as afre sh driver rvas proper, tl.rerefore, dismissed the petition on 09.O2.2015

76. The rrs ard passed by the Labour Court is justified and sustainablt:, ald does not suffer from any infirmit.y, illegality, or perversitv. The grievance of the petitioner is ursustainable and untenab e. Writ Petition is devoid of merit, ar.d pray this Court to disnriss the Writ Petition u,ith exemplarJ' costs. FINDINGS,O]:' THE COURT: 17 . Perusal of the record shows that the writ peti:ion is filed against the tu,ard dated 09.02.2015 in ID No.20 of 2Ol2 seeking relief to quash the same and consequently direct the respondents to aw-ard the petitioner's continuity of service r.l,ith all consequential benefits. Petitioner joined in the s,:rvice as a driver in the yt:irr 1991 and his serrices were regularized in the year 1995. On L8.O6.2OO7, petitioner was instructed to operate the bus bearing No.AP- 1 lZ-1465 on the route Karimnagar - Nizamabad 5.30 day out service. As per the petitioner, due to brakes failure, he could not stop the bus and ran on the Nizamabad Platform No.21. Due to negligency of the driving of the driver, one woman was died and three passengers were injured. With the above incident, petitioner u,as placed under suspension on 28.06.2OO7. After conducting the domestic enquiry, petitioner rvas removed from service u,.e.f. 11.01.2008 in terms of regulation No.9(2)(B) r/v,, 12(13) of APSRTC Employees (CC&A) Regulations, 1967. The period from 28.O6.2007 to the date of removal from service i.e. I 1 .O I .2008 be treated as 'not on duty.'

18. Questioning the same, appeal was filed and the same was rejected on 72.O3.2OO8. Aggrieved by the order of the appellate authority, petitioner preferred review before the competent authority. After reviewing the order of the appellate authority, the review authority passed the following order: "lt ts obserued from tle records of the petitioner that he was appointed in the gear of 1995. During his 12 gears of seruice, this is the first remoual from seruice case. Howeuer, keeping in uiew of matntaining satisfactory record, I tuould like to take a lenient 12 uieu cold I am inclined to giue an opp<>rtunitg to serue in the Organization and qllow the reuiew petitior to the extent ordered below:

1. The petitioner Sn D. Kistaiah, 8.319508 E*diuer of KRMR ll Depot, is h.erebg reinstabd in.to seruice as a.,'resh.

2. The petitioner Si D. Kistaiah, E 319508. diuer is postt'ti to Metpallg Depot.

3. The.oetitioner should report at his neru s;tation withi"t seuen dags from the date of receipt of orders or the orders deemed to haue been can.celled."

19. Aggrieve,l by the same, the petitioner filec1 Il) No.20 of 2Ol2 and the said ID n'as dismissed. Aggrieved by the same, the present \\trit Petition is filed. Against the sam,: incident, the PS Karimnagar liled a chargesheet in Cr.N,t.6l of 2OO7 against the pelitioner u/s 304-.4, 338 of IPC. The said criminal case was ended in acquittal. The facts remains ale that all witnesses have become hostile. With regard to the incident, the petitioni'r I imself accepted that there was he rlvy rain and waterlogged be iore platforms, while appiying suddt:n brake, sarne was not lr orked properly, due to that, the btts entered on to platform No.ll I, due to which, one lady was died, zmd three persons were inj ltred. I I I 1:t

20. One way or the other, the petitioner is accepting hear,y rain and water logging, then he had to apply the brakes in a proper marner. A perusal of the hnding report of the preliminary enquiry submitted by A.M.(T)-KRMR-ll Depot shou,s that after deliberations rvere made by the Accident Joint Enquiry Committee, it is clearly established that, the petitioner was held responsible for cause of the fatal accident, as he had not at all applied brakes to stop the Bus at Nizamabad plaftfrom No.21 in Karimnagar Bus Station thereby the Bus being driven by him at high speed and in a rash and negligent manner, had ploughed into Karimnagar Bus Station, duly hitting to platform wall, and pillars up to Ordinary Enquiry Room, due to which, Bus damaged, which resulted to instantaneous death of one woman, and 4 other persons sustained injuries due to hit of the bus. So, it is clear that the petitioner had not at all applied brakes to stop the Bus at Nizamabad platform No.21 in Karimnagar Bus Station thereby the Bus being driven by him at high speed arld in a rash ald negligent manner. 2L. The judgment of the Criminal Court in CC No.271 of 2OO9 shows that the investigating officer was examined and there is no evidence with regard to the allegation that the 14 petitioner drrve the bus in a rash arrd negligent marner and on that grolrrrd the petitioner \\,A S acquitted. Th<: nature of accident u,hi,:h occurred u,as such that, the bus w.rs driven on to the platform b-v the petitioner. There is nothing,)n record to show that the enquiry \,as not held properlv and nothing on record to pro.'e that enquiry lindings are per\rerse or biased. It u,as clezui-y-- nr ade out in the enquiry that tl're pet.itioner has checked thc bus before proceeding on line. Thus, the enquiry lindings carrnot be brushecl aside.

22. The Revieu,ing authorit-y having taken a lenient view, talen the petitioner as afresh candidate, and riglrtll, acted due to the lair rt:cc rc1 ol the petitioner. As such, the sairl action of the Reviewing Authority is not interfered b1 ttris Court. Hou,ever, taking into consideration of the follou'ing {actors r.e. the said accide nt r,r'as due to negligence of the petitioner and the said action of the petitioner was not wanton I a<:quittal of the criminal ca se, petitioner having 1 5 years of clerrn record and more p:rrticuiarly, because the petitioner is treated as a fresh candidatr, he lost his annual grade incr€m€nts, Court is inclirre,l to gralt 50% of back wages from 28.06.2007 to 11.01.2O08, v,'hich period was treated as 'not on duty.' 23. Accordingly, this Writ Petition is disposed of by directing the respondent authorities to grant 50% of back wages from

28.06.2007 to 11.01.200B within a period o[ three (O3) months from the date of receipt ol a copy of this order, in accordance u,ith lau'. No order as to costs Miscellaneous petitions, if any, pending shail stand clo sed. To SDJ:n.s.s. cowRr sHANKAR S ISTANT REGISTRAR ,TRUE COPY// ECTION OFFICER

1. The Principal Secretary, Labour E mployment Trainin nd Factories (LabouQ Department, State of Telangana, Telangana Secretariat, Hyderabad.

2. The Chairmen - cum - Presiding Officer, lndustrial Tribunal - cum - Labour Court, Godavari Khani, Karimnagar District. 3 The Depot [Vlanager, TSRTC, Karimnagar-ll Depot, Karimnagar, Karimnagar District

4. The Deputy Chief Traffic Manager, TSRTC, Karimnagar, Karimnagar District. 5. The Regional Manager, TSRTC, Karimnagar, Karimnagar District. 6. Two CCs to GP For Labour High Court ,Hyderabad [OUT] 7. One CC to SRI CH. JAGANNATHA RAO, Advocate [OPUC] 8. One CC to SRI N. CHANDRA SEKHAR, S C. for TGSRTC [OPUC] 9. Two CD Copies MP '\>/ Y 7 t e* t * t CC TODAY HIGH COURT 0t10t202s t .,.1 ;i '.j -.) :) 11 Ncll 2lE l. Jr.r \ \., ir(a.q \;: \l's- * '7 * a: i a''.:: ORDER WP.No.34004 of 2015 \: DISPOSING OF THE WRITPETITION WITHOUT COSTS * , t { I 1\ \-\ \